The Reality of Roe

Yesterday was the 41st anniversary of the Supreme Court decision that made it illegal for federal and state governments to make blanket, outright bans on abortion. For those who fight for women’s ability to exercise full autonomy and human rights, January 22nd is treated as a day of celebration and remembrance of those who fought before us. Nonprofits, advocacy organizations, and student groups from coast to coast held benefits and awareness events. Celebratory twitter hashtags and blurbs from liberal blogs are still piling up. Good news is scarce in the world of reproductive justice activism, and we’ll take it where we can get it. I won’t begrudge our beleaguered cause one day of hope – at least, not until the morning after.

The reality of our situation gives the lie to much of the hopeful rhetoric that comes rolling out every year on Roe’s anniversary. Our backward slide doesn’t look to be slowing anytime soon. If we face the the reality of what Roe has done, self-congratulatory reflections on how far we’ve come become not only ridiculous and out of touch, but insulting and dangerous as well. A prime example of the rose-colored view of Roe espoused by many in the mainstream is this sentence, written by President and CEO of Planned Parenthood Federation of America on the 38th anniversary of Roe, three years ago:

Thirty-eight years after Roe gave America’s women the right and the opportunity to plan for their families and control their reproductive health, this tenet of modern American rights is under assault. [1]

It’s deeply disturbing to see someone in Richards’ position giving credence to the fantasy articulated here, even while she acknowledges that our meager gains are under threat. After all the dust had settled, Roe and the relevant subsequent court decisions made it illegal for federal and state governments to ban abortion outright before the point of a fetus’s viability outside the womb– that’s it. There is no language whatsoever in the entire decision that guarantees women the right to an abortion. If there was such language, women would be able to use the precedent of Roe to sue their government if they, for instance, were prevented by lack of resources from obtaining an abortion. This is not the case.

The decision in Roe was based on the right to privacy in the 14th Amendment, a right most often invoked within the law to protect consumer decisions. Within a for-profit healthcare system, medical decisions are consumer decisions, and only middle to upper class (predominantly white) women have the resources to exercise meaningful choices regarding abortion. Roe doesn’t challenge that fact – it affirms and reinforces it.

Even more laughable is the idea that Roe gave “America’s women” the opportunity to access abortion. From the beginning, the only American women who were granted the opportunity to control their reproduction were those who could pay. The Hyde Amendment banned Medicare from covering abortion access just a few short years after Roe, effectively obliterating abortion access for millions of poor women. The oft-repeated mantra of “never go back” loses all meaning when in reality, only a select group of women were ever permitted to escape. The slow strangle of targeted regulation and domestic terrorism campaigns make abortion progressively more expensive to obtain, as women have to travel further to reach clinics. Roe does not confer rights or opportunity, it bestows privilege upon women of means.

In the three years since Cecile Richards wrote that sentence, more restrictions on reproductive freedom have been enacted than in the ten years prior. Eighty seven percent of counties have no abortion provider. Insurance bans and medicare prohibition like the Hyde Amendment, combined with geographical obstacles, TRAP laws, and the constant threat of violence against women and clinic workers, make abortion inaccessible or a significant hardship for the majority of women in the United States. Legislation granting personhood to pregnancies (and thereby taking personhood away from women) continues to advance, and record numbers of women are being jailed for failing to successfully carry their pregnancies to term. One hopes that in recent years, Richards and her organization have been disabused of such fantastical notions of Roe’s capabilities. Indeed, this year’s obligatory missive from PPFA takes a somewhat more urgent tone.

Roe is not enough, and we know it. But stopping at acknowledging Roe’s shortcomings still glosses over the reality of what Roe has done – and it’s not all good.

Most contemporary discussion of the “Pre-Roe Era” goes something like this: “Before this landmark decision, abortions were completely illegal, and desperate women had to resort to unsafe, backalley procedures, many of which resulted in their deaths.” [2]

The above narrative is a popular just-so story, but it completely obscures the reality of how women were forced into the horrific situations it describes. This narrative is not only incomplete, it’s also Euro-centric. Many indigenous cultures practiced a variety of methods for terminating pregnancy and controlling reproduction. European invasion, colonization, and the ongoing genocide of indigenous peoples has meant the almost total erasure of traditional knowledge including that of how abortions were performed. The systematic rape of indigenous women as a weapon of war continues today, further denying them any reproductive control. Starting in the early sixteen hundreds, captured Africans sold as slaves were denied any and all reproductive control. Female slaves and freed African women experience both forced childbirth and forced sterilization, both of which continue. Last year it came out that at least 148 women were forcible sterilized between 2006 and 2010 in the California prison system. [3]

Supporters held a candlelight vigil in front of the Supreme Court in Washington, D.C., on Jan. 22, 2005, to commemorate the 32nd anniversary of the Roe v. Wade decision. (Pablo Martinez Monsivais, Associated Press)

The history of reproductive restriction on this continent dates back to well before the official inception of the United States, however the kind of criminalization that Roe attempted to address is a phenomenon unique to the last couple centuries. Abortion was surprisingly accepted among early European settlers up until the point of “quickening,” which referred to the first time a woman felt her fetus move within her womb. Individual women of course were often controlled in all aspects of life, including reproduction, by their husbands and fathers – something that continues today. But abortion was legal for white women up until that certain point in pregnancy. Practitioners were often midwives, or women without formal medical training. Many popular abortion techniques were medicinal and therefore there was no abortionist, only the woman. Colonial home medical guides gave recipes for “bringing on the menses” with herbs that could be grown in one’s garden or easily found in the woods. These were not always safe, but they were not illegal, and they were largely under female control.

In the 1820’s, states began outlawing abortion, and though these laws were couched in religious language just as they are today, the rise of abortion restriction mirrored rising fears that the higher birthrate of racial and religious minority populations would lead to a protestant minority and a white minority, an idea that still sends shivers down the spines of our white male leaders.

In 1868 Horatio R. Storer, one of the leading anti-abortion crusaders, is quoted:

Will the West be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation. [4]

Unfortunately, Storer and other physicians were not satisfied to leave the answer to that question up to women or our loins. They decided to take matters into their own hands. In the late eighteen hundreds, the American Medical Association (which was then an entirely male controlled institution) lobbied aggressively for the criminalization of abortion.

The frightful extent of [abortion in the US] is found in the grave defects of our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. -1859 AMA Committee [5]

So according to these men, the prevalence abortion was not based on the needs or decisions of women, but on incorrect medical understanding. If this was true, then as the newly knighted elite of the medical industry, they were conveniently declaring themselves as the only authorities qualified to correct the medical misunderstanding that lead to abortion. This was a bid for control, because it ensured that the only people who had the authority to perform abortions were male, formally trained physicians. By 1900, every state had abortion restrictions on the books, and it’s been all downhill from there. There’s a lot of information and analysis out there about the medicalization of birth, and how the absorption of reproduction into the medical industry, and the reclassifying of birth from a natural process to a medical phenomenon, has been bad for women overall. This is also true of the medicalization of abortion. The practice of medicine during this period went from a more community based structure with widwives and female healers having a place particularly in reproductive aspects of health, to the absorption of this community structure into the commercial medical industry. The medicalization and the criminalization of abortion went hand in hand. Both increased male control and decreased female reproductive autonomy.

Roe does nothing to challenge this hostile takeover of female reproductive decisions by male dominated institutions. Roe codifies governmental regulation of abortion in law, and it institutionalized the total dependence of women on the medical industry with regard to reproduction. Never once in the text of Roe v. Wade is a woman referred to as having made a decision on her own; every single time a woman’s decision is mentioned, it’s as “a woman and her physician.” When we put this language into context with the usurption of reproductive control by the commercial medical industry, the effect of Roe becomes a lot more sinister.

In all of our romanticization of Roe’s effects, why do we never speak of the fact that in the pre-Roe era, women weren’t fighting the government over how abortion should be regulated – they were fighting over whether the government had the right to exercise any control over female reproduction. By accepting governmental regulation as a baseline, we’re giving up ground that pre-Roe activists fought for tooth and nail. NARAL – which now stands for National Abortion and Reproductive Rights Action League – was original named National Association for the Repeal of Abortion Laws. During some demonstrations, activists would hand out sheets of paper with their ideal version of abortion restriction – and it was a blank sheet of paper. Our foremothers knew that if we accept any control over reproduction by the government and medical industry, we fail utterly to protect women’s reproductive autonomy.

The text of the Roe decision also left one obvious and frightening door to the total criminalization of abortion wide open, and it didn’t take the law very long at all to force through that door. The text of the decision says:

The available precedent persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. […] If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.

And unsurprisingly, in 1989 with Webster v. Reproductive Health Services the Supreme Court upheld the constitutionality of language in a Missouri statute that asserts that “the life of each humanbeing begins at conception” and “unborn children have protectable interests in life, health, and wellbeing.” The law being upheld required that all Missouri state laws be interpreted to provide unborn children with rights equal to those enjoyed by other persons – which effectively revokes legal personhood from pregnant women. This ruling set the stage for the several personhood law attempts we’ve seen recently. The first of these was passed into law in North Dakota and is now viable precedent. The door to criminalization left open by Roe has been effectively blown off its hinges.

The logical conclusion of codifying fetal personhood into law is that women are being criminally prosecuted when their pregnancies do not end in live birth. Over the last few years we’ve seen women in the US brought up on charges that they somehow caused their miscarriages. Bills criminalizing miscarriage have been proposed in several states, and in some, the courts have acted on them. In 2009 Nina Buckhalter was indicted by a grand jury in Lamar County, Mississippi, for manslaughter, claiming that the then 29 year old woman “did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence.” This was after Nina had a stillbirth at 31 weeks. The National Association for Pregnant Women has documented more than 400 cases across the country in which these laws have been used to detain or jail pregnant women for supposedly endangering their pregnancies. 71 percent of these are, unsurprisingly, likely to be low income women.

Instead of granting women the right to obtain an abortion, Roe v. Wade affirmed the right of the medical industry and government to make decisions for women. Instead of providing women with the opportunity to access abortion, Roe v. Wade affirmed that abortion is a privilege only afforded to a lucky, monied few. Instead of moving the fight for Reproductive Justice forward, Roe v. Wade conceded most of the ground that pre-Roe activists were fighting for. To top it all off, Roe includes a specific directive on personhood that has paved the way for those who would love to see abortion eradicated. Why are we surprised that things have become steadily worse since Roe was decided? Why have we let ourselves forget what actual reproductive autonomy even looks like? Next year on Roe’s anniversary, and the whole year in between, let’s stop being satisfied with weak reforms that simply reinforce the status quo. Let’s take a hard, honest look at what is at stake when we laud Roe for what it can’t do and completely forget what it has done – the good and the bad.

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